SHERIFFDOM OF GRAMPIAN, HIGHLAND AND ISLANDS AT BANFF
Judgement
Of
Sheriff Philip Mann
In Summary Cause SD40/12
The Aberdeenshire Council, a Local Authority incorporated by and acting under the Local Government (Scotland) Act 1994 and having its administrative headquarters at Woodhill House, Westburn Road, Aberdeen (Pursuers)
Against
Bryn Evans, residing at 52 Duncan Street, Banff (Defender)
Banff, 18 July 2013
The sheriff, having resumed consideration of the cause:-
Finds in Fact:-
1. Under a tenancy agreement dated 6 January 2003 and 6 March 2003, entered into in terms of the Housing (Scotland) Act 2001, the Pursuers are the landlords and the Defender is the tenant of the subjects known as and forming 52 Duncan Street, Banff ("the property").
2. Before the Defender signed the tenancy agreement he had the opportunity to read it. He was allowed to take it home and he had the opportunity to take legal advice upon its terms.
3. In terms of clause 2.6 of the tenancy agreement the Defender is obliged not to use or allow the use of the subjects for illegal or immoral purposes. This is stated to include dealing in controlled drugs
4. On 26 July 2012 the Defender was convicted of being concerned in the supply of a class A drug, namely diamorphine, within the subjects. He was sentenced to 15 months imprisonment in relation thereto.
5. As at the date of the proof in this action on 3 June 2013 the Defender had been released from prison and was residing at the property.
6. The Pursuers rightly regard drug dealing within their housing stock as having a detrimental effect upon the public at large and upon the local community concerned.
7. There are many families, including children and school children living in the vicinity of the subjects.
8. The Pursuers have regular meetings with the police to gain information about criminal activity within their housing stock. It was as a result of one such meeting that the Pursuers learned about the Defender's conviction.
9. The conduct of the Defender resulting in his conviction was a breach of condition 2.6 of the tenancy agreement.
10. Before taking action such as the present against a tenant who is in breach of his tenancy agreement the Pursuers assess the seriousness of the conduct concerned. They do not raise repossession proceedings as a matter of course against all tenants who are in breach of clause 2.6 of the tenancy agreement. Nonetheless, they assessed the conduct of the Defender and his conviction as being sufficiently serious to warrant these proceedings.
11. The Pursuers have received a complaint about a needle being found on the communal path relating to the property. They have received a complaint about the congregation of large numbers of people at the property.
12. Prior to commencement of these proceedings the Pursuers served a notice on the Defender complying with section 14(2) of the Housing (Scotland) Act 2001.
13. The property is a first floor flat with 3 external steps and 13 internal steps. On the recommendation of the Pursuers' occupational therapist the property was adapted by being fitted with double handrails at the steps. All properties within the Pursuers' housing stock having more than 3 steps are now fitted with double handrails.
14. The Defender suffered an injury at work. As a result, he has difficulty walking to the shops. He has difficulty getting in and out of his bath. The bath has an electric chair attachment to assist getting in and out of the bath. His bed has a frame designed to assist him getting in and out of bed. He has a chair whose seat is positioned higher than normal to assist with sitting down and standing up. The Defender's difficulties are not such that he is unable to tend to his garden.
15. The modifications to the property are minor in nature.
16. The Defender is assisted by a neighbour who does his shopping. She often helps him dress and does some of his housework.
Finds in Fact and Law:-
1. These are proceedings under section 14 of the Housing (Scotland) Act 2001.
2. The Pursuers have a ground for recovery of possession of the subjects set out in paragraph 2 of schedule 2 to the Housing (Scotland) Act 2001.
3. The ground for recovery of possession is set out in the notice served on the Defender in terms of section 14(2) of the said Act.
4. It is reasonable to make the order sought by the Pursuers for recovery of possession of the subjects.
Finds in Law:-
1. Subject to section 16(1) of the Housing (Scotland) Act 2001, the court is obliged by virtue of section 16(2)(a) of the Housing (Scotland) Act 2001 to make the order sought by the Pursuers for recovery of possession of the subjects.
Therefore, Refuses the Defender's motion made at the bar to adjourn the proceedings; Finds the Pursuers entitled to an order for recovery of possession of the subjects known as 52 Duncan Street, Banff; Meantime reserves the question of expenses and appoints parties to be heard thereon within the Sheriff Court House, Low Street, Banff on 13 August 2013 at 11:00 am unless prior to that date the parties lodge a joint minute agreeing the question of expenses.
Sheriff Philip Mann
Note/
Note
1. Introduction
1.1 These are proceedings for recovery of possession in terms of section 14 of the Housing (Scotland) Act 2001.
1.2 The Pursuers are Aberdeenshire Council. The Defender is Bryn Evans. The parties are respectively the landlords and tenant of the subjects known as 52 Duncan Street, Banff under a tenancy agreement entered into in terms of the Housing (Scotland) Act 2001.
1.3 The Pursuers seek to recover possession of the subjects in consequence of the Defender having been convicted of being concerned in the supply of class A drugs within the subjects.
1.4 Section 16(1) of the Housing (Scotland) Act 2001 is in the following terms:-
"(1) The court may, as it thinks fit, adjourn proceedings under section 14 on a ground set out in any of paragraphs 1 to 7 and 15 of schedule 2 for a period or periods, with or without imposing conditions as to payment of outstanding rent or otherwise."
1.5 Section 16(2)(a) of the Housing (Scotland) Act 2001 is in the following terms:
"(2) Subject to subsection (1), in proceedings under section 14 the court must make an order for recovery of possession if it appears to the court-
(a) that-
(i) the landlord has a ground for recovery of possession set out in any of paragraphs 1 to 7 of that schedule and specified in the notice required by section 14, and
(ii) it is reasonable to make the order"
1.6 Section 16(3) of the Act is in the following terms:-
"(3) For the purposes of subsection (2)(a)(ii) the court is to have regard, in particular, to-
(a) the nature, frequency and duration of-
(i) ...
(ii) where the ground for recovery of possession is that set out in paragraph 2 of that schedule, the conduct in respect of which the person in question was convicted,
(b) the extent to which that conduct is or was conduct of, or a consequence of acts or omissions of, persons other than the tenant,
(c) the effect which that conduct has had, is having and is likely to have on any person other than the tenant, and
(d) any action taken by the landlord, before raising the proceedings, with a view to securing the cessation of that conduct."
1.7 Parties were agreed that the Pursuers have the ground for recovery of possession set out in paragraph 2 of schedule 2 to the Act. Paragraph 2 is in the following terms:-
"The tenant (or any one of joint tenants), a person residing or lodging in the house with, or subtenant of, the tenant, or a person visiting the house has been convicted of-
(a) using the house or allowing it to be used for immoral or illegal purposes, or
(b) an offence punishable by imprisonment committed in, or in the locality of, the house."
The questions for my determination are whether or not the granting of the order sought by the Pursuers is reasonable and, if so, whether I should grant it or should adjourn the proceedings in terms of section 16(1) of the Act.
2. The evidence
2.1 I heard evidence on 3 June 2013 when the Pursuers were represented by Ms Cruickshank, solicitor and the Defender was represented by Mr Stott, solicitor.
2.2 The Pursuers led only one witness, namely Lynn Mackie one of their housing officers. The Defender gave evidence and called one witness, namely his neighbour Mrs Amelia Kaczmarek
2.3 There was no dispute on the facts of any significance. The findings in fact, of course, reflect the evidence I heard and which I considered to be both credible and reliable. I do not propose to rehearse the evidence in any more detail.
3. The Pursuers' Submissions
3.1 Ms Cruickshank maintained that the Pursuers only raise proceedings for recovery of possession in cases where they assess that the conduct of the tenant is sufficiently serious to warrant such action. They had made that assessment in this case.
3.2 Ms Cruickshank referred to section 16(3) of the Act which sets out four factors that the court is directed specifically to take into account. The first factor was undoubtedly highly significant. The Defender had been convicted of being concerned in the supply of class A drugs.
3.3 In relation to the second factor Ms Cruickshank maintained that the criminal behaviour giving rise to the convictions referred to and the consequent breaches of the tenancy agreement was that of the Defender alone.
3.4 In relation to the third factor Ms Cruickshank referred to the case of Glasgow Housing Association v McNamara 2008 Hous. L.R. 38. In particular, she referred to Sheriff Ross's comments at paragraph 32 where he concluded that it was reasonable to seek to evict a drug dealing tenant having regard to the social and economic harm caused to the area in which drug dealing is conducted. Ms Cruickshank maintained that this action had a valid public interest. There was a serious drug problem in the small Banff community. The address of the property had been disclosed in the press report of the Defender's conviction. The Pursuers had to be seen to take action especially where the drug dealing took place in an area such as in this case where a lot of school children lived.
3.5 In relation to the fourth factor Ms Cruickshank pointed out that the Pursuers had taken steps to ensure that the Defender was aware of the terms of his tenancy agreement. The Defender was, or ought to have been, aware that a breach of the tenancy agreement could lead to eviction.
3.6 Ms Cruickshank compared this case to the case of Shetland Islands Council v Hassan 2012 Hous. L.R. 107. That was a case in which I had granted the order for repossession on the same ground on the basis that the tenant had been convicted of and imprisoned for having been concerned in the supply of class B drugs. In this case, the drugs were class A drugs and so the Defender's conduct was even more serious than that of the tenant in Hassan. Ms Cruickshank pointed out that in Hassan I had accepted that the Defender was a reformed character but had nonetheless granted the order for repossession.
3.7 Ms Cruickshank accepted that it was relevant to take account of the fact that the property had been adapted for use by the Defender. However, she maintained that the adaptations were minor and were not such as outweighed the factors in favour of granting the order sought. She pointed out that the Defender was not so disabled that he was unable to tend to his garden.
4. The Defender's Submissions
4.1 Mr Stott addressed four factors which, more or less, reflected the factors identified in the case of Glasgow City Council v Lockhart 1997 Hous. L. R. 99 as being relevant to the question whether it was reasonable to grant the order sought in this case.
4.2 The first factor was the public interest. Mr Stott conceded that this factor was particularly important in cases involving drugs.
4.3 The second factor was that there was no evidence that neighbours were concerned about the Defender's behaviour. Indeed, one neighbour actively assisted the Defender and had come to give evidence on his behalf.
4.4 The third factor was the isolated, one off nature of the offence. In this respect this case was similar to the case of Kirk Care Housing Association v Clugston 2000 Hous. L.R. 106 and differed from the case of McNamara, where the drug dealing had been over a period of time.
4.5 The fourth factor was the consequences for the Defender of removal from the property. Eviction would render the Defender homeless and there would be a heavy burden on the authorities to deal with him. It should also be borne in mind that the property had been adapted for use by the Defender.
4.6 In summary, Mr Stott submitted that I had to balance the seriousness of the offence with the way in which the Defender would be affected by eviction and the consequences to the wider community. He maintained that the public interest was not the overriding issue.
4.7 Without expanding on it or making any submissions in support of it Mr Stott reminded me that I had discretion to continue the cause rather than grant the order at this point.
5. Discussion and Decision
5.1 Parties were agreed that the Pursuers have the necessary ground for recovery of possession. Consequently, the only questions for my decision are whether or not it is reasonable to grant the order for that recovery and, if so, whether I should grant it or should adjourn the proceedings in terms of section 16(1) of the 2001 Act.
5.2 The order may only be granted if it is reasonable to do so. That must mean reasonable in the circumstances of the case, having regard, in particular, to the four matters set out in paragraphs (a) to (d) of section 16(3) of the Act. Looking at these paragraphs in turn:-
(a) The Defender has been convicted of a very serious contravention of the Misuse of Drugs Act 1971, resulting in a fifteen month sentence of imprisonment. It involved the supply of class A drugs within the premises. In that respect it is more serious than the case of Hassan. On the other hand, in Hassan the dealing was over a period of months whereas in this case the charge related to a single day. Nonetheless, the offence here remains at the high end of seriousness in the range of offences that could trigger the ground for repossession relied upon in this case.
(b) The Defender had a co-accused and so the conduct giving rise to the offence may not have been that of the Defender alone. Nonetheless, the Defender was solely responsible for taking the decision to allow the property to be used for the purpose of drug dealing. His participation in the offence was obviously more than minimal as can be deduced from the length of sentence imposed.
(c) It is within judicial knowledge, arising from the fact that courts deal with drug offending on a daily basis, that drug dealing causes great harm within the communities in which it is carried out. This is so whether or not the actual address in which the offending takes place is disclosed in the press coverage of the relevant criminal proceedings. It is also so whether or not the offender gets on well with neighbours and whether or not neighbours see fit to complain about the offender's behaviour. The Pursuers' decision to pursue the eviction, and thus rid the community of, a drug dealer is entirely reasonable and legitimate. A needle was found on the communal path of the property. The Defender maintained that it had nothing to do with him but whether or not that is the case it is still indicative of the fact that there is a drug problem in the area. That gives the Pursuers all the more reason to pursue eviction.
(d) The fact that the Defender was given the opportunity to read over the tenancy agreement before signing it does not appear to me to be a relevant consideration under this paragraph. But it is part of the general circumstances that I take into account. It is a matter of inference that the Defender must have been aware that use of the subjects for an illegal or immoral purpose, such as drug dealing, would be a breach of the tenancy agreement which could lead to eviction action being taken against him. This supports a conclusion that granting the order is reasonable.
5.3 Taking all of the foregoing into account I am of the view that, prima facie, it is reasonable to grant the order sought by the Pursuers. The only element of Mr Stott's submissions that I have not touched upon thus far is the fourth factor referred to in Glasgow City Council v Lockhart, namely the effect of eviction on the Defender. Allied to this is the fact that the house has been adapted for the Defender's use. Whilst these matters have to be weighed in the balance I am not persuaded that they, either alone or in combination, tip the balance against eviction. The Defender knew full well that conduct of the kind of which he was convicted could lead to eviction. If eviction were to be unreasonable simply because it renders the Defender homeless and a burden on the authorities that would rob the provisions creating the ground for recovery of any practical effect. There needs to be more than homelessness, which after all is the probable and natural result of eviction, to tip the balance. I do not think that the level of adaptation of the property for the Defender's use is so significant or so special to the property that it adds any extra weight. The adaptations that were discussed in evidence could be easily, and probably quite cheaply, replicated elsewhere.
5.4 In the circumstances of this case I am satisfied that it is reasonable to grant the order sought by the Pursuers. It follows that I must grant the order unless I am persuaded that it would be appropriate to exercise the discretion which I have in terms of section 16(1) of the Act to adjourn the proceedings. I cannot see that there is anything to be gained by adjourning the proceedings. Mr Stott was unable to, or at least did not, articulate any advantage to be gained by so doing.
5.5 Accordingly, I have determined that I am obliged to grant the order
5.6 I was not addressed on the question of expenses. I have fixed a hearing on that matter but it would be helpful if parties could lodge a joint minute if they are able to agree on this question. I could then grant an appropriate interlocutor without a hearing.